Monday, December 23, 2019
Elder of ZiyonThe Office of the Prosecutor of the ICC detailed her potential charges against Israel (and Hamas) in paragraphs 94-96 of the 112 page report released Friday, "Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine." Those charges include:
1) Intentionally launching disproportionate attacks in the 2014 war
2) wilful killing and wilfully causing serious injury to body or health
3) intentionally directing an attack against objects or persons using the
distinctive emblems of the Geneva Conventions
4) the transfer of Israeli civilians into the West Bank since 2014 (when the Palestinian Authority joined the Rome Statute)
5) use by members of the IDF of non-lethal and lethal means against persons participating in demonstrations beginning in March 2018 near the border fence between the Gaza Strip and Israel
If the prosecutor is fair, she will drop four of the five charges. Israel's High Court as well as Israel's Military Advocate General exhaustively investigate all incidents and there is no way a fair court can say that Israel doesn't uphold the rule of law. The High Court is respected internationally.
A footnote in this prosecutor's report shows that the fourth charge, that of "transfer of civilians," cannot be defended by Israel. She notes that Israel's High Court has refused to rule on that issue because it is far more a political that a legal issue. Paragraph 180:
The Israeli Government, in turn, has considered the settlements to be lawful. And while the Israeli High Court of Justice has examined the legality of discrete actions taken by Israeli public authorities connected to the Government of Israel’s settlement policy based on individual claims before it, despite the High Court’s recognised independence, it has consistently held the broader policy question of the Government of Israel’s settlement policy as such, which has been deemed to be predominantly political in nature, to be “non-justiciable”.[572]
The footnote says:
See Ayub et al. case, pp. 12-13 (Vice-President Landau: “I have more willingly reached the conclusion that this court should refrain from considering this issue of civilian settlement in an occupied territory under international law, knowing that this issue is in dispute between the government of Israel and other governments and that it may be debated in the context of a crucial international negotiation of which the government of Israel is a party. Any opinion expressed by this court on such a sensitive issue which cannot be said other than as an obiter dictum, will neither add nor derogate, and issues which by their nature belong to the realm of international politics should better be discussed in that realm only. In other words, although I agree that petitioners' complaint is generally within the court's jurisdiction, in view of the fact that it involves proprietary rights of individuals, this special aspect of the matter should be regarded as not within the jurisdiction of the court when the petition is submitted to this court by an individual.”); Bargil et al. case, p. 9, President M. Shamgar ((referring to HCJ 852/86 Aloni v. Minister of Justice): “As we said there, attempts have been made to bring predominantly political disputes into the jurisdiction of the court. In that case I pointed out that I personally do not believe that it is, in practice, possible to create a hermetic seal or filter that are capable of preventing disputes of a political nature from penetrating into litigation before the High Court of Justice. The standard applied by the court is a legal one, but public law issues also include political aspects, within the different meanings of that term. The question which must be asked in such a case is, generally, what is the predominant nature of the dispute. As explained, the standard applied by the court is a legal one, and this is the basis for deciding whether an issue should be considered by the court, that is, whether an issue is predominantly political or predominantly legal./ In the case before us, it is absolutely clear that the predominant nature of the issue is political, and it has continued to be so from its inception until the present.”); Bargil et al. case, p. 11, Justice E. Goldberg: (“does this case fall into the category of the few cases where this Court will deny a petition for lack of institutional justicity [...] I believe that we must answer this question in the affirmative. This is not because we lack the legal tools to give judgment, but because a judicial determination, which does not concern individual rights, should defer to a political process of great importance and great significance. Such is the issue before us: it stands at the centre of the peace process; it is of unrivalled importance; and any determination by the court is likely to be interpreted as a direct intervention therein. The special and exceptional circumstances referred to, which are unique, are what put this case into the category of those special cases, where the fear of impairing the public’s confidence in the judiciary exceeds ‘the fear of impairing the public’s confidence in the law...’”). See also Green Park International Inc v Quebec 2009 para. 265, observing with respect to the scope of what the HCJ has deemed non-justiciable: “On its face, the Bargil case plainly does not support the view that the HCJ would refuse to hear the Action on the basis that the alleged violation of Article 49(6) of the Fourth Geneva Convention is non justiciable. It merely expresses the well-established principle of judicial economy whereby a court may abstain from considering a question in the abstract.”
By the High Court of Justice avoiding these rulings on the grounds that they are non-justiciable, Israel has opened itself up to the charge that allowing Jews to live in 2% of Judea and Samaria is a war crime - and the Rome Statute that the ICC must use at the basis for its rulings was written specifically to include Jews being allowed to live in Judea and Samaria to be considered as an equally vile crime as torture, biological experimentation or taking hostages.
The Arab hate of Israel and the apathy of the world (save the United States) to stop them allowed the creation of a completely new category of war crime that never existed in the history of international law to be added to the Rome Statute. I have previously detailed the entire history of how "international law" has been systematically changed specifically against Israel. This is of course a sickening application of international law - the idea that one nation's actions must be redefined from legal to illegal, using "legal" means, is nothing short of perverted. Yet all the moves made by the Arab nations since at least 1977 deliberately and specifically against Israel within the framework of creating brand new international laws directed at a single state have been accepted by the international community.
And never considered to be used against any other nation that also not only allows but even forces the transfer of its citizens into occupied territory.
Israel cannot defend itself against this charge because the entire world has been complicit in allowing a brand new international law to come into effect directed only at Israel - a law that the ICC cannot ignore. The cards have been not only stacked but reprinted: a magician's deck is the only one allowed to be used by the ICC when Israel is involved.
